Visitation Rights|Andhra Pradesh High Court|X v. Y(2025)|Mother Tries to Block Visitation, Court Restores Balance: Child’s Welfare Above All
- DTN
- Dec 1
- 9 min read
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Appeal: Appeal under Section 19 of the Family Courts Act, 1955 against the order and decree December 2019 passed in F.C.O.P. (G.W.O.P.) of 2017 on the file of XIV Additional District & Sessions Judge-Cum-Additional Family Judge, Vijayawada, Krishna District.
Petition under Section 151 CPC praying the High Court to stay all further proceedings in pursuance of the order and Decree dated December 2019 in F.C.O.P.(G.W.O.P.) of 2017 on the file of XIV Additional District and Sessions Judge-cum-Additional Family Judge, Vijayawada, Krishna District.
Reason: Feeling aggrieved and dissatisfied with the order dated December 2019 passed in F.C.O.P. (G.W.O.P.) of 2017 passed by the learned XIV Additional District and Sessions Judge-cum-Additional Family Judge Vijayawada (for short ‘the Family Court’), the wife filed this Family Court Appeal under section 19 of the Family Courts Act, 1984.
Brief Facts: The husband filed a petition under Sections 7, 10, and 11 of the Guardian and Wards Act, 1890 r/w Section 6 (a) of the Hindu Minority and Guardianship Act, seeking custody of his minor daughter from the wife.
The Family Court partly allowed the petition by granting visitation rights to the husband over the minor daughter, who is in the custody of the wife on every Sunday, holidays and all festival days at the wife's house.
The facts leading to the present appeal in a nutshell are as under:
1. The parties are the husband and wife, and their marriage took place on 12.08.2009 at Tirupati, Chittoor District. They were blessed with a baby girl.
2. It is submitted that the husband filed a petition in O.P. of 2014 seeking the dissolution of marriage through divorce. Later, the wife filed a criminal case against the husband under Section 498-A I.P.C. Both matters were compromised between the parties by granting a divorce decree in 2015.
3. The wife is working in a bank, she is not looking after the welfare of the minor daughter and not showing any love and affection towards the minor daughter. In spite of oral understanding between the parties, the wife did not permit the husband to spend time with his minor daughter on weekends and holidays.
Wife’s submissions in Family Court:
The wife filed a counter, denying most of the averments made in the petition, except their marriage and the birth of the child and passing of the order in O.P. in 2014. The husband never treated her child with love and affection at any time; he did not even offer any gifts for the festivals or the birthdays of the minor child. The husband has no disciplined life. The wife has been looking after the minor child’s welfare. She is now aged about eight years, studying third class. The husband deserted and abandoned the wife and the minor child in the year 2011. The minor child underwent cardiac surgery in September 2014 and an eye operation in November 2015; during that critical period, the husband did not support the wife or pay the medical bills. There is no acquaintance between the husband and the minor child. She is not in a position to recognise him.
Husband’s submissions in Family Court:
On behalf of the husband, P.Ws. l and 2 were examined and marked Ex. Al to Ex. A4 documents. On behalf of the wife, R.W. l was examined and no documents were marked on her behalf.
After hearing both sides, the Judge, Family Court partly allowed the petition as indicated above.
Wife’s submissions in High Court:
Wife contends that the Judge, Family Court erred in granting the relief which has not been sought by the husband. The Judge, Family Court, granted visitation rights to the husband without considering the admission of the husband in the cross-examination that he suffered from mental depression and had undergone treatment from the Sukhibava Psychiatrist. She further contends that objection to the visitation rights of the husband stems from the concern for the welfare of the child. The husband does not take care of the child even according to his admissions in the cross-examination. The visitation rights granted to the husband are detrimental to the welfare of the minor child. The husband is not entitled to visitation rights as he is not entitled to the guardianship of the child.
Husband’s submissions in High Court:
Per contra, the husband supported the findings and observations of the Family Court and contends that the order of the Family Court is well- reasoned. The sole purpose of the Appeal is to exclude the husband from the life of the minor.
Points for consideration before the Hon’ble High Court:
Was the Family Court Justified in allowing the visitation rights of the husband to have access to the minor child?
Whether the Order of the Family Court needs any interference?
Point No. 1 and 2:
The wife in sum and substance is seeking setting aside of the order dated December 2019 passed by the learned XIV Additional and District Sessions Judge-cum-Additional Family Judge, Vijayawada, to the extent that the husband has been granted visitation rights of the minor child as indicated above. The husband has not preferred the Appeal against the orders passed by the Judge, Family court, refusing to grant custody of the minor child.
Under the Guardians and Wards Act and also under the Hindu Minority and Guardianship Act, the primary consideration for the Court is to see the welfare and interest of the child. The Court is not required to see the rights of any parent, but it is the welfare and interest of the child which is to be predominantly seen by the Court.
3. The following facts are either admitted or disputed:
The minor child is the daughter of the parties, and their marriage was held on 12.08.2009 in Pedda Tirupati, as per Hindu customs and rights.
The husband herein filed a petition in O.P. of 2014 seeking the dissolution of the marriage performed between them. After filing of the said petition, the wife filed a criminal case under section 498A of I.P.C. Subsequently; the matter was compromised.
The husband examined as PW. l being the petitioner in O.P.; he also relied on Exs. A.1 to A.4 documents.
A reading of the Ex. A.2 copy of the order dated February 2015 in O.P. of 2014 shows that the Judge, Family Court, Vijayawada, allowed the petition as per the terms of compromise by dissolving the marriage of the parties dated August 2009 by granting a decree of divorce.
4. It is the contention strongly projected on behalf of the wife that as visitation right is not reflected in the order in O.P., the Family Court is not justified in granting such right to the husband. As seen from the record, the wife, as RW. l, deposed that she did not allow her husband even visitation right as it is not mentioned in the order in O.P. of 2014.
5. The husband as PW. l admitted in cross-examination that as per the terms of the compromise, his wife agreed to take custody of the minor daughter to look after her welfare till her marriage. Still, he was given visitation rights in the said O.P. Whereas, the wife, who was examined as RW. l in O.P., deposed that there is no mention in the Order in O.P. No. 101 of 2014 regarding the visitation rights of her husband. The wife contends that the husband, as PW. l, admitted in his evidence that he never offered any birthday gifts to his daughter at any time, and he has had no personal acquaintance with his daughter from her age of one year five months. However, the husband, clarified that whenever he tried to visit, he was warned by the police at the instance of his wife. It is not the case of the wife that she did not object to her husband whenever he intended to visit the minor child.
6. The Judge, Family Court, observed that there is no mention of visiting rights in O.P. of 2014. A perusal of the order passed in O.P. of 2014 also supports the contention of the wife in this regard.
In Rosy Jacob Vs. Jacob A. Chakramakkal, three-Judges bench of the Hon'ble Apex Court held that all orders relating to the custody of minors were considered to be temporary orders. The learned Judges made it clear that the Court is entitled to modify the order in the interest of the minor child. The Court went to the extent of saying that even if orders are based on consent, those orders can also be varied if the child's welfare so demands.
In this connection, the principles set out in para Nos. 42 and 43 by the Hon’ble Apex Court in Gaurav Nagpal v. Sumedha Nagpal are pertinent which are as follows:
“42. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the Court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible.
43. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the ‘welfare of the child’ and not rights of the parents under a statute for the time being in force.”
In the factual and legal background considered above the objections raised by the wife do not hold much water.
The other contention of the wife is that PW. l admitted in his evidence that he was suffering from mental depression and had undergone treatment from the Sukhibhava psychiatrist. No material is placed to show that the husband has been suffering from psychiatric illness as of the date of the passing of the impugned order. The evidence of PW. 1 does not show that he has been suffering from psychiatric illness.
In the Rosy Jacob’s case as referred supra, the Hon’ble Apex Court further observed in para No. 15 of its Judgment that:
....The children are not mere chattels: or mere playthings for their parents. Absolute rights of parents over the destinies and the lives of their children have, in the modem changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of the welfare of the minor children and the rights of their respective parents over them".
In Bimlenda Kumar Chatterjee V. Dipa Chatterjee, the Hon’ble Apex Court held that a humanitarian approach is necessary for solving the disputes regarding custody and guardianship, and it was held that even if custody is retained with the mother, the right of the father to see the child at intervals cannot be ignored.
In R. V. Srinath Prasad V. Nandamuri Jaya Krishna, the Hon'ble Apex also held that since custody matters are sensitive issues involving the emotions of the parties concerned, the Courts have to strike a balance between the emotions and the welfare of a minor, which is a matter of greater importance as held in Jai Prakash Khadria V. Shyam Sunder Agarwalla.
The allegations against the husband were that the husband never supported the child during the crucial period when the child underwent cardiac surgery in September 2014 and an eye operation in November 2015, and he did not pay the medical bills, are not enough to deprive his visitation rights.
It is not the case of the wife that the husband suffers from any vice that is detrimental to the interest of the child or he has indulged in domestic violence and has a history of child abuse or suffers from psychiatric illness or has any social issues with the child that would negatively impact the child.
Having regard to the cumulative consideration of all the facts and events discussed supra, we are of the view that the Family Court has given visitation rights to the husband to meet and interact with the child at regular intervals at a place where the child resides as it fosters love and affection between them, though the husband is denied custody of minor child. The Child cannot be deprived of the love and affection of his father and vice versa. The husband being the natural guardian is entitled to have visitation rights over the minor child.
We find there is no reason for this Court to arrive at a different conclusion than the one arrived at by the Family Court. The view taken by the Family court does not call for any interference. We agree with the conclusion reached by the Family Court.
As a result, the Appeal is dismissed without costs by confirming the Decree and Order in F.C.O.P (G.W.O.P.) of 2017, dated December 2019, passed by the learned XIV Additional District and Sessions Judge-cum-Additional Family Judge, Vijayawada.
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